People v. Leslie

ROTH, J., pro tem. Defendant was charged with assault by means of force likely to produce great bodily injury upon Emily Morris Zurndorfer, and was found guilty of simple assault by a jury and was sentenced to six months in the [178]county jail. From the judgment and order denying his motion for a new trial, defendant appeals.

The charge arose from the following facts: Between 1 and 2 o’clock in the morning of February 17, 1935, two women named Ardell and Zurndorfer (the latter the complaining witness herein), neighbors of defendant, called on. defendant and his wife on their return home from a party which they had attended. The evidence is conflicting as to whether or not the women in question were under the influence of intoxicating liquor at the time. Referring to the complaining witness Zurndorfer at the time of pronouncing the sentence, the trial court said: “I think unquestionably that on that occasion she was to some extent under the influence of liquor; ...” At the time of the entry of the two women, the defendant Leslie, his wife, his step-daughter and one Hamilton were playing “hearts”. There was an exchange of some pleasantries, and there is a substantial amount of conflicting evidence as to whether or not both women accepted drinks poured by defendant’s wife, although it is plain that the complaining witness accepted one such drink which she referred to “as the stuff which was poured”. This stuff was gin. During the course of the game, the visitors discussed the party they had attended. According to the complaining witness, defendant Leslie was in an ugly mood and turned to Mrs. Ardell and said: “That bastard of a husband of yours ritzed me on the street, the other day; I hate his guts, and that goes for you, too. ... He said, ‘Now, you dirty, lousy, drunken bums, get out of my house!’ And I resented it. I said, ‘You ought to be ashamed to talk that way to ladies. ’ And he said, ‘ Oh, yeah?’ and with that—and with that he raised his right fist; Mrs. Ardell was near her coat; she was evidently going to grab her coat. ... I was across the room, over toward the door where our coats were lying; and, when I said to him ‘You ought to be ashamed to talk that way to ladies, ’ he struck her in the jaw with his right fist, on the left side of her jaw, and she wore a mark there for two weeks. . . . When he hit her, I screamed so loud he was startled by it; and he said, ‘I will knock the so-and-so out of you.’ Q. And what did you say? A. I did not say anything. There was a bottle there, and I said, ‘If you come near me, I will let you have [179]